Karnataka High Court
Sri Venkatesha Reddy G vs Sri K Sudhakar on 26 September, 2025
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NC: 2025:KHC:39161
RFA No. 1089 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
REGULAR FIRST APPEAL NO.1089 OF 2023 (SP)
BETWEEN:
1. SRI VENKATESHA REDDY .G
S/O. LATE SRI GUNDA REDDY,
AGED ABOUT 67 YEARS,
RESIDING AT NO.RF-1,
HITECH CITADEL APARTMENT,
RAJKUMAR BLOCK,
PHASE-2 15TH MAIN ROAD,
19TH CROSS, PADMANABHANAGAR,
BENGALURU-560 061.
2. SMT. PADMA .V
W/O. SRI VENKATESHA REDDY .G
AGED ABOUT 63 YEARS,
RESIDING AT NO.RF-1,
Digitally signed by
HITECH CITADEL APARTMENT,
MAHALAKSHMI B M RAJKUMAR BLOCK,
Location: HIGH PHASE-2 15TH MAIN ROAD,
COURT OF 19TH CROSS, PADMANABHANAGAR,
KARNATAKA
BENGALURU-560 061.
3. SRI RAM PRASAD REDDY .V
S/O. SRI VENKATESHA REDDY .G
AGED ABOUT 46 YEARS,
RESIDING AT NO.RF-1,
HITECH CITADEL APARTMENT,
RAJKUMAR BLOCK,
PHASE-2 15TH MAIN ROAD,
19TH CROSS, PADMANABHANAGAR,
BENGALURU-560 061.
...APPELLANTS
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NC: 2025:KHC:39161
RFA No. 1089 of 2023
HC-KAR
(BY SRI S.S. YADRAMI, SENIOR COUNSEL FOR
SRI KEERTHI PRASAD D.C., ADVOCATE)
AND:
1. SRI K. SUDHAKAR
S/O. SRI K. ANANDAPPA,
AGED ABOUT 49 YEARS,
R/AT NO.20/1, LAST BUS STOP,
KENGERI UPANAGARA,
BENGALURU-560 080.
2. SMT. N. MANJULA,
W/O. SRI K. SATHYANARAYANA,
AGED ABOUT 42 YEARS,
R/AT NO. VENGALAMMANA HALLI,
MADHUGIRI TALUK,
NOW AT NO.73, 1ST CROSS,
2ND MAIN, 2ND CROSS,
MARIYAPPANA PALYA,
GNANABHARATHI POST,
BENGALURU-560 056.
3. SRI K. SATHYANARAYANA,
S/O. LATE SRI KEMPAIAH,
AGED ABOUT 47 YEARS,
R/AT NO. VENGALAMMANA HALLI,
MADHUGIRI TALUK,
NOW AT.73, 1ST CROSS,
2ND MAIN, 2ND CROSS,
MARIYAPPANA PALYA,
GNANABHARATHI POST,
BENGALURU-560 056.
4. MASTER. SUHAS.S,
S/O. SRI K. SATHYANARAYANA,
AGED ABOUT 19 YEARS,
R/AT NO. VENGALAMMANA HALLI,
MADHUGIRI TALUK,
NOW AT NO.73, 1ST CROSS,
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NC: 2025:KHC:39161
RFA No. 1089 of 2023
HC-KAR
2ND MAIN, 2ND CROSS,
MARIYAPPANA PALYA,
GNANABHARATHI POST,
BENGALURU-560 056.
5. KUMARI. MEHAL .S
D/O. SRI K. SATHYANARAYANA,
AGED ABOUT 16 YEARS,
R/AT NO. VENGALAMMANA HALLI,
MADHUGIRI TALUK,
NOW AT NO.73, 1ST CROSS,
2ND MAIN, 2ND CROSS,
MARIYAPPANA PALYA,
GNANABHARATHI POST,
BENGALURU-560 056.
SINCE MINOR REPRESENTED BY
HER MOTHER NATURAL GUARDIAN
SMT. N. MANJULA,
THE 2ND RESPONDENT HEREIN.
...RESPONDENTS
(BY SRI M.S. VARADARAJAN, ADVOCATE FOR
SRI K.P. BHUVAN, ADVOCATE AND
SRI K.R. VARUN KUMAR, ADVOCATES FOR C/R-1;
NOTICE TO R-2 TO R-5 ARE SERVED AND UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC AGAINST THE DATED 15.04.2023 PASSED IN
O.S.NO.166/2022 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC, MADHUGIRI DECREEING THE SUIT
FOR SPECIFIC PERFORMANCE.
THIS APPEAL COMING ON FOR ORDER, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA
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NC: 2025:KHC:39161
RFA No. 1089 of 2023
HC-KAR
ORAL JUDGMENT
This present regular first appeal is directed against the judgment and decree dated 15.04.2023 in O.S. No.166/2022, passed by the Additional Senior Civil Judge and JMFC Madhugiri (hereinafter referred to as 'Trial Court' for short), whereby the suit of the plaintiff for specific performance of an agreement of sale dated 16.07.2008 was decreed, and the registered sale deed dated 29.08.2019 executed in favour of defendant Nos.5 to 7 were declared null and void. The appellants, who are defendant Nos.5 to 7, have challenged the correctness and legality of the said decree.
Brief facts:
2. The plaintiff instituted suit seeking specific performance of an agreement of sale dated 16.07.2008. It is the case of the plaintiff that defendant No.1, for herself and on behalf of her minor children (defendant Nos.3 and
4), and with the consent of defendant No.2, agreed to sell the suit properties for a total sale consideration of -5- NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR Rs.11,21,900/-. An advance amount of Rs.8,00,000/- was stated to have been paid on the date of agreement. It was further alleged that defendant No.1 acknowledged the agreement and receipt of consideration in her reply notice dated 03.12.2014 and that on 25.12.2014, a further sum of Rs.3,00,000/- was endorsed as a part payment, leaving only a balance of Rs.21,000/-. According to the plaintiff, despite repeated demands and issuance of notices, defendant No.1 failed to execute the sale deed. Instead, on 29.08.2019, defendant No.1, executed three registered sale deeds in favour of defendant Nos.5 to 7. Alleging that these subsequent transfers were not binding, the plaintiff prayed for the specific performance of the agreement of sale dated 16.07.2008 and declaration that the sale deeds in favour of defendant Nos. 5 to 7 are null and void.
3. Defendant Nos.1 to 4 remained ex parte.
Defendant Nos.5 to 7 contested the suit, denying the agreement of sale and specifically contending that it is a concocted, antedated document. They further stated that -6- NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR they are the bonafide purchasers under a valid registered sale deeds in their favour by defendant No.1, supported by demand drafts duly encashed by defendant No.1. It is contended that at the time of purchase, survey was also conducted from survey authority and hudbust also made to the suit schedule properties and after all cleared documents legally as furnished by defendant No.1, it is only then defendant Nos.5 to 7 have purchased the suit properties along with the borewells under three different sale deeds. The alleged agreement is dated 16.07.2008 and the suit is filed after lapse of 14 years and the suit is barred by law of limitation.
4. The Trial Court arrived at a conclusion that the agreement of sale dated 16.07.2008-Ex.P3 was proved to be genuine, as defendant No.1 herself admitted in her reply notice dated 03.12.2014 and the witnesses corroborated the execution. The trial Court held that the payment of Rs.3,00,000/- on 25.12.2014 was also established through endorsement. The readiness and -7- NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR willingness was proved by the plaintiff, as he had paid almost the entire sale consideration of Rs.11,00,000/- out of Rs.11,21,900/- agreed. The Trial Court arrived at a conclusion that the sale deeds in favour of defendant Nos.5 to 7 are void, as they failed to establish that they are bonafide purchasers without notice. It was held that defendant Nos.5 to 7 had made no enquiries and had purchased the properties during the subsistence of the plaintiff's agreement. Further, the suit is not barred since the vendor herself had undertaken obligation for rectification of records, providing access to road etc., which was never fulfilled and by the judgment and decree, the trial Court has decreed the suit, held that the plaintiff is entitled for specific performance and declared the sale deeds in favour of defendant Nos.5 to 7 as void.
5. Heard the learned senior counsel appearing for the appellants and the learned counsel appearing for the respondents.
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR
6. Learned senior counsel for the appellants would urge the following grounds:
i. Ex.P3 agreement of sale is a created antedated agreement. Ex.P3 is the core document, the stamp paper was purchased in the name of PW.5, not in the name of the plaintiff. In his cross-examination, the plaintiff admitted that he had taken no effective steps to enforce Ex.P3 for several years. The document Ex.P3 is styled as a tripartite agreement between plaintiff, Kempaiah and defendant No.1. Yet the endorsement dated 25.12.2014 is not signed by all concerned parties, rendering it legally doubtful.
ii. Delay and inaction From December 2014, Ex.P5 (reply notice), until filing of suit in 2022, - almost 12 years from the agreement and 8 years from the admission by defendant No.1 under Ex.P4, the plaintiff made no serious effort. Such prolonged silence defeats the requirement of -9- NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR continuous readiness and willingness under Section 16 (c) of the Specific Relief Act, 1963 ('Act' for short).
iii. Legal notice (Ex.P4) is dated 10.11.2014, allegedly issued by the plaintiff to defendant No.1, however, no postal acknowledgment is produced.
iv. Reply of defendant No.1 (Ex.P5) is dated 03.12.2014. In the said reply, defendant No.1 accepted the agreement; however, the plaintiff took no steps for nearly eight years thereafter.
v. It is only under Ex.P10 that is dated 03.06.2019, the plaintiff issued a legal notice calling upon defendant No.1 to come forward for execution of the sale deed, which is nothing but an attempt to revive a stale claim. Under Section 114 of the Indian Evidence Act, 1872, an adverse inference arises against the plaintiff for failing to prove the genuineness of the notice. Ex.P10 is an imaginary cause of action and the alleged notice dated 03.06.2019 under Ex.P10 is an afterthought, created solely to give a false appearance of cause of action before
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR filing the suit. Neither postal acknowledgment nor proof of service of the notice has been produced. When the defendants' vendor had already sold the suit properties to the appellants and received valid consideration, Ex.P10 cannot revive the agreement of sale of 2008.
vi. Consideration paid by defendants. a. The sale consideration under Ex.D2 dated 29.08.2019 was duly received and encashed by defendant No.1.
b. Such encashment establishes that the sale was genuine, supported by consideration, and validly concluded.
c. The plaintiff has never denied the encashment, hence, the appellants stand protected as bonafide purchasers for value.
vii. The plaintiff has never raised a proper plea that the registered sale deeds in favour of the appellants were collusive or without consideration. In the absence of such
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR a plea, subsequent purchasers, acting in good faith are protected under Section 19 (b) of the Act.
viii. The trial Court decreed the suit for specific performance while ignoring the long silence from 2008 to 2014 and from 2014 to 2019, indicating clearly the absence of continuous readiness and willingness. The registered sale deeds in favour of defendant Nos.5 to 7, supported by encashed demand drafts, were also over looked. It is therefore submitted that the findings on issue No.1, on the execution and enforceability of Ex.P3, are totally perverse and the impugned judgment and decree cannot be sustained in law and deserves to be set aside.
ix. Defendant No.1 remained ex parte throughout. Her silence, coupled with the plaintiff's reliance on unproved notices, clearly suggests collusion between them to create documents and defeat the rights of the bonafide purchaser. The burden was on the plaintiff to dispel this suspicion by producing the best evidence, however, he
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR failed to examine defendant No.1. Specific performance is an equitable relief and not a matter of right. The plaintiff's prolonged inaction, failure to prove readiness and willingness, and reliance on unproved documents disentitle him to such relief. On these grounds, the learned Senior Counsel submits that the plaintiff has miserably failed to prove Ex.P3, has not established continuous readiness and willingness, and that the suit is barred by limitation. The appellants, being bonafide purchasers under valid registered sale deeds, are protected under Section 19(b) of the Act. The decree of the trial Court is, therefore, perverse and deserves to be set aside, and the appeal be allowed with costs.
7. Per contra, learned counsel appearing for the respondent-plaintiff would urge the following grounds:
i. Ex.P3 stands proved by overwhelming evidence of PW.1, PW.2 to PW.5 (witnesses) PW.6 (scribe). Defendant Nos.1 and 2 signed for themselves and on
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR behalf of the minors, witnesses identified their signatures and defendant No.1 never denied the agreement-Ex.P3.
ii. Defendant No.1 remained ex parte, thus her admission in Ex.P5 stands unchallenged. Defendant Nos.5 to 7 cannot deny Ex.P3 when its executant herself never contested the suit. If it was seriously disputed, they ought to have sought expert opinion or summoned defendant No.1.
iii. The plaintiff paid an advance of Rs.8,00,000/-, and a further sum of Rs.3,00,000/- by way of endorsement, thereby paying almost the entire consideration of Rs.11,21,000/-, leaving only a balance of Rs.21,000/-.
iv. Ex.P5, reply notice (03.12.2014) issued by defendant No.1 admits Ex.P3 and receipt of the advance. Since she has replied, postal proof is not necessary and therefore, defendant Nos.5 to 7 cannot dispute when the executant herself has admitted the agreement of sale (Ex.P3).
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR v. Ex.P10-legal notice by the plaintiff demonstrates that the plaintiff was vigilant even prior to the execution of the defendants' sale deeds. The plaintiff was always ready and willing to perform his part of the contract, having already paid substantial consideration. The obligation to perform was on defendant No.1, such as survey, hudbust, RTC clearance, access road, electricity, and NOC and therefore, nothing further remained for the plaintiff to perform, and delay is immaterial so long as the suit is within limitation. Since no time was fixed under Ex.P3, limitation commenced from the date of refusal, i.e., the execution of the sale deeds dated 29.08.2019 (Exs.D2 to D4). The suit, having been filed in April 2022, is well within the three-year limitation, and delay cannot be held fatal. Defendant Nos.5 to 7 have also failed to establish that they are bonafide purchasers, as no evidence has been produced to show any enquiry with the Sub-Registrar or the villagers. Their case rests on a constructed notice, which cannot override the plaintiff's prior agreement.
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR vi. Exs.P3 and P4 are supported by witnesses and the admission of defendant No.1. Defendant Nos.5 to 7's bare plea of collusion without proof is untenable. Plaintiff proved Ex.P3, payment, and proved the readiness and willingness. Defendant No.1 admitted in Ex.P5 about the execution of Ex.P3. Suit is within limitation and the defendants failed to prove that they are bonafide purchasers and the trial Court's decree is legal, equitable and correct and the appeal needs to be dismissed and does not warrant any interference.
vii. The reliance is placed on the following decisions:
a. P. Daivasigamani Vs. S. Sambandan1 (P. Daivasigamani), to contend that the delay is not fatal if the suit is within limitation.
b. Ramathal Vs. Maruthathal and Ors2 (Ramathal) Readiness and willingness is crucial, but seller's obligation matters.1
AIR 2022 SC 5009 2 AIR 2018 SC 340
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR c. K. Prakash Vs. B.R. Sampath Kumar3 (K. Prakash) to contend that the proof of readiness is mandatory.
d. R. Lakshmikantham Vs. Devaraji4 (R Lakshmikantham) to contend that the delay is not fatal if it is within limitation.
e. Maharaj Singh v. Karan Singh (Dead) Thr. Lrs.5 (Maharaj Singh) about the constructive notice principle.
f. P. Ramasubbamma Vs. V. Vijayalakshmi and Ors.6 (P. Ramasubbamma), to contend that once the vendor admits execution and receipt of advance, plaintiff need not prove further.
g. Mademsetty Satyanarayana vs. G. Yelloji Rao7 (Mademsetty Satyanarayana) viii. Learned counsel for the respondent submits that the plaintiff has proved Ex.P3 and the payments under it. The readiness and willingness and obligations 3 204 AIR SCW 5795 4 (2019) 8 SCC 62 5 AIR 2024 SC 3328 6 AIR 2022 SC 1793 7 AIR 1965 SC 1405.
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR were on defendant Nos.5 to 7 and the suit is within time, defendant Nos.5 to 7 have failed to prove that they are the bonafide purchasers and cannot deny Ex.P3. The trial Court's decree for specific performance is justified and does not warrant any interference.
8. Having heard the learned counsel for the parties, the points that arise for consideration are:
"i. Whether the plaintiff has proved the execution of Ex.P3 dated 16.07.2008 as a genuine and enforceable contract? ii. Whether the plaintiff has established the continuous genuineness, readiness, and willingness to perform his part of contract, as required under Section 16 (c) of the Specific Relief Act, 1963?
iii. Whether the suit instituted in 2022 is within the period of limitation prescribed under Article 54 of the Limitation Act, 1963? iv. Whether defendant Nos.5 to 7, who purchased the suit properties under the registered sale deeds dated 29.08.2019 are
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR bonafide purchasers for value without notice and thereby, protected under Section 19(b) of the Specific Relief Act?
v. Whether the findings of the Trial Court in decreeing the specific performance and declaring the appellants registered sale deeds void are sustainable in law?"
Point No.i, ii & v:
9. The core submission of the appellants is that Ex.P3 is an antedated and fabricated. Exs.P4 to P10 are unreliable, the suit is hopelessly barred by limitation and defendant Nos.5 to 7 are bonafide purchasers under valid registered sale deeds supported by encashed demand drafts. The core submission of the respondent is that execution of Ex.P3 is proved by overwhelming oral and documentary evidence. Ex.P5 (the reply notice by defendant No.1), amounts to a categorical admission by defendant No.1, which defendant Nos.5 to 7 cannot disown. The absence of defendant No.1 only strengthens the plaintiff's case, since she never denied the agreement.
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR The plaintiff has paid substantial consideration and was always ready and willing to perform.
10. Ex.P3 is an unregistered document. Defendant No.1, the executant never entered the witness box to affirm the execution or receipt of consideration. Plaintiff relied solely on the attesting witnesses and the scribe, but withheld the best evidence by not summoning defendant No.1. Under Section 114 (g) of the Indian Evidence Act, 1872 an adverse inference arises against the plaintiff for not producing the best evidence. A party seeking specific performance must prove the agreement beyond suspicion. Plaintiff relies heavily on 'Ex.P5 as an admission by defendant No.1.' But the genuineness of Ex.P5 is doubtful. Defendant No.1 never stepped into the witness box to confirm issuing it. Ex.P4 is the notice and Ex.P5 is the reply notice. In a suit for specific performance, the plaintiff bears the initial burden of proving that the notices were duly issued and served on the vendor. Exs.P4 and P5 are heavily relied upon by the plaintiff as a proof of continuous
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR demand and acknowledgment. However, the plaintiff failed to produce the postal receipts of acknowledgment to establish the service of Ex.P4 dated 10.11.2014, when the defendants specifically disputed service and alleged fabrication, it was incumbent upon the plaintiff to produce these documents, failure to do so, attracts an adverse inference. Further, Ex.P5 is the purported reply by defendant No.1 dated 03.12.2014. Exs.P4 and P5 form the foundation of the plaintiff's case. By the time of the suit, defendant Nos.5 to 7 already held registered sale deeds dated 29.08.2019 executed by defendant No.1-the admitted owner under Ex.D1. These deeds are valid, registered instruments supported by encashed demand drafts and in law, carry a presumption of genuineness and validity. When registered sale deeds exist, the plaintiff must discharge a heavier burden to prove that prior agreement Ex.P3 was genuine, valid and enforceable. The plaintiff cannot simply rely on oral testimony of attesting witnesses or Exs.P4 and P5 notices of doubtful proof. He
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR must strictly prove execution, service of notices and continuous readiness.
11. This is not a simple case of enforcement of an agreement of sale. The silence of defendant No.1 cannot by itself sustain the plaintiff's claim. The issuance of Ex.P10 just before filing of the suit and after a long inaction itself casts doubt on the plaintiff's bonafides. The trial Court has failed to appreciate the heightened burden and wrongly decreed the suit for specific performance.
12. Learned counsel for the respondent-plaintiff has placed reliance on various decisions of the Apex Court in the case of Mademsetty Satyanarayana, R. Lakshmikantham and Daivasigamani to contend that mere delay is not fatal so long as the suit is filed within limitation, and that readiness and willingness should be viewed in the light of the obligation cast on the vendor.
13. This Court, however, finds that these authorities do not advance the respondent's case, and the
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR reliance placed by the learned counsel for the respondent on the above decisions is misplaced for the following reason:
i. On delay and limitation, in Mademsetty Satyanarayana and Daivasigamani, the Apex Court held that delay within limitation may not bar relief. But in those cases, the plaintiffs had acted consistently, either by remaining in possession or by taking steps showing continuous readiness and willingness.
In the present case, the plaintiff was silent for 6 years 2008 to 2014 and thereafter again until 2019. Such unexplained inaction cannot be equated with the plaintiff's conduct in the cited cases.
ii. On the readiness and willingness, R. Lakshmikantham was a case where a substantial part of the consideration was paid and possession was delivered, thereby evidencing readiness. Here though the plaintiff alleges payment of advance, the same was in cash, uncorroborated by receipts or bank records and
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR possession was never delivered. The circumstances are thus materially different. The reliance placed on the cases where obligations such as obtaining clearances or approval rest on the vendor and thereby delay was executed.
14. However, in the present matter, Ex.P3 itself though stipulate such conditions, Ex.D1 is a sale deed in respect of the suit properties purchased in the year 2005 by defendant No.1 and it was free from all conditions as indicated in Ex.P3. Thus, the trial Court's finding that the survey and hudbust 'obligation extended the limitation is misconceived'. The Apex Court has repeatedly emphasized that specific performance is a discretionary relief and to be refused when the plaintiff's conduct is inequitable. The plaintiff's long silence reliance on unproved notices (Exs.P4 and P5), and the suspicion of collusion disentitle him to equitable relief.
15. This Court finds that Ex.P4 and Ex.P5, which were pressed in service by the plaintiff suffers from
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR serious infirmities. Ex.P4 is unsupported by any postal acknowledgment or proof of delivery. Ex.P5, purportedly a reply by defendant No.1, has not been proved by examining either the executant or the scribe. In these circumstances, Ex.P4 and Ex.P5 appear to be created documents designed to fabricate a cause of action and to deprive defendant Nos.5 to 7 of their legitimate rights under a valid registered sale deeds and the trial Court has totally erred in treating these documents as admission. It is to be borne in mind that this is not a simple case of enforcement of agreement of sale in isolation, by the time the present suit was instituted. Defendant Nos.5 to 7 had already acquired rights under registered sale deeds dated 29.08.2019 executed by defendant No.1, who is the owner under Ex.D1 dated 03.10.2005. These registered conveyance, supported by consideration paid through demand drafts and duly encashed, carry a presumption of validity and genuineness under law.
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR
16. In such circumstances, the burden upon the plaintiff was all the heavier to establish that there existed a genuine binding and enforceable agreement dated 16.07.2008-Ex.P3. It was incumbent upon the plaintiff to strictly prove execution of Ex.P3, service of notices, payment of consideration, and his continuous readiness and willingness. The mere oral testimony of attesting witnesses and scribe, without corroboration by defendant No.1, the executant herself, falls short of discharging this burden. The silence of defendant No.1, who remained ex- parte, cannot by itself be treated as proof of Ex.P3. Silence does not substitute proof, rather, it raises a suspicion of collusion between the plaintiff and defendant No.1. Moreover, the issuance of Ex.P10 notice on 03.06.2019, just before the filing of the suit and after nearly 5 years of inaction since Ex.P5, casts serious doubt on the bonafides of the plaintiff's conduct. If Ex.P5 was genuine, there was no necessity for Ex.P10. Hence, point Nos.i, ii and v are answered accordingly.
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR Point No.iii:
17. On the aspect of readiness and willingness, the plaintiff remained silent from 2008 to 2014 and again until 2019. Sporadic notices cannot establish continuous readiness. The discretionary relief cannot be granted to a party who has slept over his right.
Point No.iv:
18. Even if Ex.P5 is genuine, the admission therein arose in the year 2014, whereas the suit filed in 2022 is hopelessly barred under Article 54 of the Limitation Act. The trial Court's view that the obligation of defendant No.1 postponed the limitation is erroneous, as no such stipulation exists. Even if such stipulation was seen, defendant No.1 has purchased the properties after obtaining all clearances in the year 2005. The appellants purchased the properties through registered sale deeds dated 29.08.2019, paying consideration through demand drafts, which were duly encashed. The plaintiff has not alleged fraud or sham under Section 19(b) of the Specific
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NC: 2025:KHC:39161 RFA No. 1089 of 2023 HC-KAR Relief Act, 1963, the appellants are bonafide purchasers for value without consideration and the points framed for consideration are answered accordingly and this Court pass the following:
ORDER i. The Regular First Appeal is hereby allowed. ii. The judgment and decree dated 15.04.2023 in O.S. No.166/2022, passed by the Additional Senior Civil Judge and JMFC Madhgiri is set aside and suit is dismissed.
Sd/-
____________________ JUSTICE K.S. HEMALEKHA MBM List No.: 1 Sl No.: 27Z